SRIDHAR SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner was convicted under Section 47(a) & (f) of Bihar and Orissa Excise Act (for short 'the Act') and sentenced to undergo R.I. for six months and to pay a fine of Rs.5007 - on each count, in default, to undergo R.I. for a further period of three months on each count by the learned S.D.J.M., Athagarh in 2(a) C.C. Case No. 86 of 1991. By the impugned judgment, learned 1st Addl. Sessions Judge, Cuttack partly allowed the Criminal Appeal No. 17 of 1995 setting aside the conviction and sentence passed under Section 47(f) of the Act and maintaining the conviction and sentence passed under Section 47(a) of the Act. Aggrieved, the Petitioner has filed this revision.

(2.) PROSECUTION case is that on 21.4.1991, P.W.4, the S.I. of Excise alongwith his staff including P.W.3, ASI of Excise conducted raid in the forest situated near village Viruda at about 4.00 P.M. and found the Petitioner engaged in distilling liquor in the cashew field. Seeing them, Petitioner fled away leaving the materials at the spot. P.W.4 seized two tins M.Os.ll to III each containing 16 litres of I.D. liquor and 175 earthen pots, each containing 20 litres of tormented Gurwash in presence of P.Ws.1 and 2 under seizure list Ext.1. He kept the sample of the tormented Gurwash in the bottle M.O.I. The earthen pots were destroyed. On 9.10.1991 P.W.4 arrested the Petitioner and handed over a copy of the seizure list Ext.1. In course of enquiry, P.W.4 tested the seized liquor by means of blue litmus paper and hydrometer. On completion of enquiry, prosecution report was submitted against the Petitioner, in order to substantiate the allegations, prosecution examined four witnesses P.Ws.1 to 4 and also relied upon documents marked Exts.1 to 2 and material exhibits M.Os. I to III. No independent witness was examined.

(3.) IN assailing the impugned judgment, it is contended that there is absolutely no evidence to indicate that any intoxicant was seized from the possession of the Petitioner. Both the learned appellate Court as well as the learned trial Magistrate failed to take note of glaring discrepancies and contradictions in the evidence of two official witnesses on the basis of whose testimony conviction has been based. Learned counsel for the State supports the impugned judgment.